Zwiegelaar v Zwiegelaar

• Jurisdiction: South Africa
• Judge: Smalberger JA, Zulman JA, Melunsky AJA, Mthiyane AJA and Chetty AJA
• Judgment Date: 28 November 2000
• Citation: 2001 (1) SA 1208 (SCA)
• Docket Number: 607/98
• Hearing Date: 03 November 2000
• Counsel: P A L Gamble for the appellant. P F Cloete for the respondent.
• Court: Supreme Court of Appeal

Chetty AJA: E

[1] In a contested divorce action brought by the appellant (in reconvention) against the respondent in the Cape of Good Hope Provincial Division, the trial Court (Louw J) dissolved the marital regime between the parties and made certain ancillary orders including F an order for maintenance. Paragraph 2 of the order as formulated reads:

'Verweerder word gelas om, as onderhoud ingevolge die bepalings van art 7(2) van die Wet:

(a)

die bedrag van R8 000 per maand aan eiseres te betaal vanaf 1 Januarie 1997 tot haar dood of hertroue, welke ookal eerste mag plaasvind; G

(b)

die bedrag van R50 000 voor of op 15 Januarie 1997 aan eiseres te betaal vir die aankoop van huishoudelike benodigdhede.' [*]

[2] The respondent unsuccessfully applied for leave to appeal against certain of the orders granted, including para 2(b). On petition to this Court the respondent was granted leave to H appeal to the Full Court of the Provincial Division solely on the question whether the trial Court was in law competent to make the order as set forth in para 2(b) thereof.

Chetty AJA

[3] The Full Court (Hlophe J with Selikowitz et Kuhn JJ concurring) allowed the appeal, holding that s 7(2) of the Divorce ActJ A 70 of 1979 (the Act) precluded the trial Court from making the said order. The judgment is reported - see 1999 (1) SA 1182 (C). This Court thereafter granted the appellant special leave to appeal against the whole of the order of the Court a quo, hence the present appeal. B

[4] The question of law which arises for determination is whether the trial Court was empowered under s 7(2) of the Act to order the respondent to pay to the appellant, as part of her maintenance requirements, the sum of R50 000 for the purchase by her of household necessaries, together with an order for monthly maintenance. C

[5] Before adverting to the merits of the legal issue raised in the appeal it is to be observed that the trial Court accepted the appellant's evidence that, having been ordered out of the common home, she was obliged to acquire certain household necessaries to render the home habitable. It also found that the respondent was financially able to provide these. D

[6] Section 7(2) of the Act provides:

'In the absence of an order made in terms of ss (1) with regard to the payment of maintenance by the one party to the other, the Court may, having regard to the existing or prospective means of each of the E parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of ss (3) and any other factor which in the opinion of the Court should be taken into account, make an order which the Court finds just in respect of the payment of maintenance by F the one party to the other for any period until the death or remarriage of the party in whose favour the order is...